For some, nothing makes for better reality TV than a bitter dispute between contestants.
But in the current series of Married At First Sight, a long-standing argument between two participants could potentially land them on the wrong side of the law, and inside a courtroom facing criminal charges.
Possible charges
NSW Police have confirmed they are investigating allegations of a 'wine glass smashing' incident, as well as the potentially criminal charges for the sharing of an intimate image without consent.
As the Married at First Sight saga played out on television screens across the nation this season, the wine smashing incident seemed to pale in comparison with the 'nude image scandal.'
However, even the producers of the show seemed confused as to whether an offence had been committed.
If you're not an avid watcher, this is what happened: In the middle of a long-running argument with a fellow participant – not long after the smashed wine glass incident – contestant Olivia allegedly found contestant Domenica's OnlyFans account, downloaded a nude photo of her and shared it secretly with other contestants.
Image-based abuse
This type of offence is characterised as image-based abuse, sometimes also called ' Revenge Porn' and it is against the law.
Most people might consider that the image was already in the 'public domain' – that is, it was accessible via the internet, so what's the harm with sharing it?
But it's a misconception to believe that under such circumstances, sharing the image would be legal.
Image-based abuse
Image-based sexual abuse is defined as "the non-consensual creation, distribution or threats to distribute nude or sexual images (photos or videos) of a person".
Every State and Territory (except for Tasmania) now has a specific criminal offence for image-based abuse including NSW, the ACT, South Australia, Western Australia, Victoria, Queensland and the Northern Territory.
Federal offences relating to the use of a carriage service to harass or cause offence could also apply.
Moreover, the Enhancing Online Safety Act 2015 (Cth) established a civil penalty scheme empowering the eSafety Commissioner to remove images online and, in some cases, take action against the person who shared, or threatened to share, an intimate image without consent.
The law in New South Wales
Under the Crimes Act 1900 it is in an offence to observe, film or distribute intimate images without consent in New South Wales.
In addition to existing criminal offences of peeping or prying and voyeurism, the law in our state was recently changed to make it a specific offence to:
- Record an intimate image without consent; section 91P,
- Distribute an intimate image without consent; section 91Q, and
- Threaten to record or distribute an intimate image without consent; section 91R.
The maximum penalty for each of these offences is three years in prison and/or a fine of $11,000.
What is an 'intimate image'?
An intimate imagw' is defined as:
- An image of a person's private parts, or of a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy, or
- An image that has been altered to appear to show a person's private parts, or a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy.
What is a 'private act'?
A private act includes depictions of someone in a state of undress, using the toilet, showering, bathing, engaged in a sexual act or engaged in any other like activity.
Consent to the recording or distribution of an intimate image requires "free and voluntary agreement". Consent cannot have occurred if someone does not have capacity or complies because of threats.
It is made very explicit under the law that consent to record for, or distribute an image to, a particular person does not mean consent for that image to be shared to others.
Essential 'elements' of the offences
For each of the outlined offences, the prosecution bears the onus of proving each 'element' – or ingredient – beyond a reasonable doubt.
If the prosecution is unable to do this, the defendant is entitled to an 'acquittal' – in other words, a verdict of not guilty.
For recording an intimate image without consent under section 91P, the prosecution must prove that:
- You intentionally recorded an intimate image of another person,
- You did so without the other person's consent, and
- You knew the other person did not consent, or were reckless as to whether or not they were consenting.
For distributing an intimate image without consent under section 91Q, the prosecution must t prove that:
- You intentionally distributed an intimate image of another person,
- You did so without the other person's consent, and
- You knew the other person did not consent to the distribution, or were reckless as to whether or not they were consenting.
And for threatening to record or distribute an intimate image without consent under section 91R, the prosecution must prove that:
- You threatened to record or distribute an intimate image of another person,
- You did so without the other person's consent, and
- By doing so, you intended to cause the person to fear the threat would be carried out.
The section makes clear that the threat can be made by any conduct, whether explicit or implicit, conditional or unconditional, the image does not have to actually exist and the prosecution does not need to prove that the threatened person feared the threat would be carried out.
Legal defences
In the event that evidence of a legal defence is raised, the prosecution must prove beyond a reasonable doubt that the defence does not apply.
Legal defences include duress and necessity.
Cyber offences are on the rise – know the laws, and know your rights
During the Covid pandemic, cyber offences such revenge porn and sextorrtion (where a person threatens to share an image unless they are paid not to do so) increased substantially. Prior to Covid-19, statistics showed that one in five Australians have had a nude or sexual photo taken of them without consent, and one in 10 have had a nude photo of themselves shared without their permission.
The issue of image-based abuse may have made an accidental appearance on Married At First Sight but it has created a lot of media attention, tea-room gossip and dinner table discussion.
This is a good thing and hopefully will go some way towards educating the general public about the laws around image-based abuse and consent – a person can be prosecuted if they were deemed to be 'reckless' or careless in gaining consent.
Contestant Olivia, who shared the image, has reportedly lost her job as a result of her appearance and 'mean girl' antics on the show. She is in training to be a school teacher. But the internet has a long memory – her reputation could be tarnished for some time to come.
She has also received a considerable amount of online hate – more than 100,000 people have signed a petition to have her arrested and charged for sharing the image of Domenica.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
